by SirGuy deBrownsville
You’re in the middle of a hot wax play scene. You are slowly peeling the wax off of your bottom’s nipples. Your bottom is strapped to a table. The energy is really flowing. Your bottom is on the brink of a phenomenal orgasm and is crying out in bliss.. The bell starts to ring insistently. Ticked off about having your scene ruined, you rush to the door, still wearing your gloves and carrying your blade. In anger you fling the door open… to find your friendly neighborhood law enforcement officer! What do you do?
Even in a society that seems to have sex at its fingertips and that seems to be more open about sex than ever before, societal norms still view BDSM as an aberration. In spite of the wide distribution of “50 Shades of Bland”, religionists, politicos and others still view BDSM in its various forms and practices to be taboo. In some places it is even against the law.
Despite this, there are many of us who value our sexual freedom and we react strongly when someone tries to curtail that freedom. So, what do we do? How do we keep from getting involved in non-consensual uniform play, bondage and a variety of other types of edge play? Today, we are going to discuss some information culled from research, and my own personal experiences, both as a former law enforcement officer and as a fellow kinkster. (Some of the following information comes from the National Coalition for Sexual Freedom’s website.)
First, there is the disclaimer: I am not now, nor have I ever been an attorney, though I have played on in a scene or two. The advice given today is not to be taken as legal advice from a law professional, but simply for informational purposes. Should you find yourself with a legal problem, consult with a licensed attorney. Also keep in mind that laws and ordinances vary from country to country, state to state, city to city, town to town. What may be legal here may be illegal next door.
Now… let’s get the show on the road!
Many of us have our own views on law enforcement based upon our own experiences, conditioning and other things. As a result, the views even within this community can run from one extreme to another. Some believe that police officers are here to maintain order, to serve the people and are a necessity in a civilized society. Others feel that they are the physical manifestations of a police state, the agents of the government and a conduit of oppression that flows from the centers of power downward. Then of course there is a lot in between. Regardless of your personal feelings on police, one must be mindful whenever one interacts with law enforcement. There are certain keys to dealing with officers:
• Do be calm
• Do be respectful, polite and courteous under all circumstances
• Do use your common sense (though lately it seems common sense isn’t as common as it once was)
• Do not have a bad attitude
• Do not do anything that could be viewed as aggression or threatening.
We will elaborate on these more as we go along in our discussion.
One must understand that police officers can use discretion, but the amount of discretion they have is limited by laws and procedures. There may be a situation wherein an officer does not want to put you under arrest, but if he does not, he will face discipline or even the loss of his job. Understand too that police officers have power, but that it is not unlimited… but it is enough to prevent you from sleeping in your bed tonight.
Regardless of how upset you may be, you must watch your tone and your attitude when dealing with police officers. You’d be surprised how often a respectful tone and a calm manner can diffuse a situation and allow you to maintain your relative freedom.
With that in mind there are some things you should simply never say to a police officer when confronted. Some of these things are:
• Met your quota? Happy now?
• I want your badge number and your superior officer’s name right now!
• I pay your salary!
• Care for a doughnut?
• Didn’t I see you at a Village People reunion?
• Ask if he was the guy you saw getting his ass kicked on Cops.
• Ask if you’re on Punk’d
• Ask, “So what are those rubber gloves for anyway?”
It doesn’t serve you any good to try to prove a point, to try to assert your authority or to dazzle with your brilliant display of your knowledge of the law. It is not prudent to try to antagonize someone with the power and authority to remove your freedom, even if it is only temporarily.
Miranda Warnings
Anyone who has watched enough television cop shows has probably memorized the Miranda warnings. You’ve probably heard it called “reading them their rights.” They are as follows:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights? Now that you have been advised of these rights do you wish to speak without the presence of an attorney?”
Why do police do this? Back in 1966 Chief Justice Earl Warren, a former prosecutor, recognized the need for suspects to be reminded of their constitutional rights against self-incrimination. The Fifth Amendment to the Constitution gives you the right not to incriminate yourself, and the Sixth Amendment gives you the right to legal counsel. He recognized those police interrogations, now euphemistically called interviews, could be very intimidating and coercive. In addition, it was recognized that most often suspects of means had ready access to attorneys and understood their right not to incriminate themselves. Generally, it was the poorer and less educated suspects who were not aware of their constitutional rights, so the Miranda warnings sought to try to level the playing field.
An arrestee’s silence is not a waiver, but on June 1, 2010, the Supreme Court ruled 5–4 that police are allowed to interrogate suspects who have invoked or waived their rights ambiguously, and any statement given during questioning prior to invocation or waiving is admissible as evidence. (The case came from Southfield, Mich., where a shooting suspect refused to sign a statement acknowledging that he had been given the Miranda warning, and didn’t expressly state that he was invoking his right to remain silent. Police interrogated the suspect, Van Chester Thompkins, for nearly three hours, during which time he said almost nothing. A detective then began asking Mr. Thompkins about his religious beliefs: “Do you pray to God to forgive you for shooting that boy down?” Mr. Thompkins said, “Yes,” but refused to make any further confession. The prosecution introduced the statement as evidence, and a jury convicted Mr. Thompkins.
On appeal, Mr. Thompkins’s lawyers contended that use of the statement violated his Fifth Amendment right against self-incrimination. Writing for himself and four conservatives, Justice Anthony Kennedy rejected that argument.
From all of the TV shows we’ve seen, you may think that it is necessary for a police officer to advise you of these rights as soon as you are detained. But is that true? First, understand that the wording doesn’t have to be exact. The idea is that these rights that you have against self-incrimination and for legal representation must be explained to you. So if a few words are not exactly the same, it really won’t matter when you go to court.
It is important to note that Miranda rights do not go into effect until after an arrest is made. The officer is free to ask questions before an arrest, but must inform the suspect that the questioning is voluntary and that he or she is free to leave at any time. The answers to these questions are admissible in court.
If the suspect is placed under arrest and not read Miranda rights, spontaneous or voluntary statements may be used in evidence in court. For example, if the suspect starts using excuses justifying why he or she committed a crime these statements can be used at trial. A simple statement like, “You got me!” uttered spontaneously can be admissible in court.
Being Under Arrest
Most people think they are arrested when a police officer says “You Are under Arrest” or puts you in the back of the police car. This is incorrect. An arrest is the act of legal authority taking actual physical custody of a citizen thus causing a restraint on that citizen’s liberty. An arrest occurs when there is a submission to authority causing a seizure of your person.
According to the Southern California Legal Defense blog, “the standard to be considered and understood is the “free to leave” standard; whether the suspect was free to leave, therefore making the police encounter consensual and not an arrest. What is difficult to understand is the interplay between a stop, detention, and arrest. Understand that an arrest is more than a stop. It is more than a detention. Further, mere contact, interaction or discussion with the police is not necessarily an “arrest.”
According to Miranda.org, “The prosecution will try to use the suspect’s silence against him or her in court. If you are being investigated for a crime and wish to remain silent before being Mirandized, you can inform the officer that your attorney told you to never speak to law enforcement without talking to him or her first. This looks less suspicious than simply refusing to answer questions.”
So, we see that there are so many nuances to when your statements are admissible and when they are not. That said, the prudent thing to do is to say as little as possible and to ask for an attorney.
“But, won’t it look like I’m guilty if I say I’m invoking my right to remain silent?” Many people feel this way. In fact, a University of North Texas psychology professor took a survey of both college students and criminal defendants and fully 1/3 of each group felt that if their silence could be used against them, they might as well try to defend themselves. Is this a good move?
Think about the Central Park Five, a 1989 NYC rape case where the victim couldn’t identify her assailants. Five teenagers were arrested and made written confessions. (Note: the Supreme Court has ruled police can use deception to elicit confessions). They were convicted as sex offenders and held until 2002 when the real rapist, her boyfriend, was arrested for other crimes and happened to confess to the rape in 1989. His DNA matched. Four of the five suspects who made confessions had already recanted. This is also another reason not to put anything in writing. Though there was no physical evidence linking them to the crime, written confessions were used to coerce the co-defendants to admit their guilt, implicate their associates and coerce their confessions.
So, no matter how it may appear to others, you are better served by verbalizing your decision not to speak to police unless your attorney is present. Understand also that anything you say can and will be used against you… never for you. Your testimony most likely will not be used to exonerate you, but to incriminate you, which is why most defendants do not testify in court on their own behalf.
If you are arrested, your conversations, both in the interview room and on the phone can be recorded unless the call is to an attorney. Also, understand that all states do not have to allow you a phone call. Some limit the amount of time you can spend on the phone.
Lineups
If you’re ever one of the suspects in a physical lineup, the first thing to remember is that you have a right to an attorney.
That right isn’t just confined to trial. It applies at every “critical stage” and that includes in-person lineups (though it doesn’t apply to photo lineups). If your lawyer isn’t present during a physical lineup, that evidence likely shouldn’t be admitted in court.
That same protection doesn’t apply to other forms of evidence gathering, such blood, DNA, or handwriting samples. Lineups have their own special challenges. One of the issues is intentional bias by police. If a witness says the crime was done by an African-American and the suspect is the only person of that race in the lineup, that’s a good indication the process is biased.
That’s an extreme example, but there are other ways errors can be made.
Another potential problem is influencing the witness, either intentionally or unintentionally. Questions that point to one or another person in the lineup can also introduce bias. Having a lawyer present means the defendant has someone to keep an eye out for both intentional and unintentional errors in the process.
But what happens when it’s your home? What happens when the police are called to your door? The important phrases to remember:
•”I do not consent to any searches.”
•”That is a question for my lawyer.”
•”Am I free to go?”
Points to Consider:
1. You do not have to let the police in the house unless they have a warrant — or probable cause. Screams or anything that sounds like a cry for help can give police probable cause.
2. Go outside to speak with the cops. Close the door behind you. Although some scary precedents are being set these days, police cannot enter your home without a warrant or probable cause. By closing the door, you’re cutting off a visual — or olfactory — line to potential probable cause. You may not realize the things you have in your house in plain view that could give an officer probable cause, but the officer does.
3. Be polite. Ask why they are there. “Good evening, Officer. What can I help you with?” Being confrontational will not serve you. It antagonizes the officers and puts you in a bad light.
4. Where possible, assure them you will take care of the problem. If the police ask to enter, inform them, “I do not consent to any searches.” If a police officer gives you an order and you are confused about your position, ask, “Do I have to comply?” If they continue with questioning, tell them you’ll need to call your lawyer and that you will not answer any questions. If they push their way in (ostensibly because they believed someone was in imminent danger) repeat that you do not consent to a search but do not attempt to resist them in any way.
5. Ask, “Am I free to leave?” This is especially handy if, say, a group of you’d been too bawdy on the patio and an officer stops by. If he/she is getting a bit hot under the collar, politely ask, “Am I being detained?” or “Am I free to leave?” If the cop has no reason to hold you, quickly, quietly, and politely retreat inside.
6. Volunteer to bring your partner to them. If they agree, enter the premise and close the door behind you, and allow the partner, who by now should be dressed, to speak with the police outside of the door. Your partner should not go anywhere with the officers and should only confirm that everything is alright and that there is no need for police.
7. Be careful about using certain terms when speaking with the police. Use of the wrong language can blur the lines between consensual SM and abuse, especially in the minds of the uninitiated or the biased. Using the term “slave” or saying, “You know she takes a good beating” are not terms police truly understand the way we might.
Traveling
As mentioned much earlier, laws can vary from country to country, state to state, county to county, city to city. For example, if you have a gun permit in NYC it is good throughout the state of New York, but if you have a gun permit from anywhere outside of the city of New York, your permit is not valid there. Also note that because of the threat of terrorism and the fear generated by highly publicized mass shooting incidents, there may be a higher level of scrutiny.
There are some things that the Federal Law allows you that local laws may not. A case in point: TSA regulations state that you are allowed to transport the following items on a plane as long as they are in checked baggage:
• Firearms, BB guns, flare guns, replica firearms and ammunition
• Bows and arrows, hunting knives, spear guns
• You can bring a parachute as carry-on baggage
• Compressed gas cylinders
Yet, they won’t allow restraints of any kind in carry-on luggage, including duct tape or rope! Also, be aware that local ordinances may vary from the federal ones. For example, in NYC replica firearms are not legal. In NYC you may not possess handcuffs.
So when traveling with questionable items via any form of transportation, it is prudent to mail those items in advance to the hotel or a friend in the area. Also note your bags may be randomly checked entering a NYC subway and now interstate bus lines are also seriously considering a baggage screening system similar to those used at the airlines, or at the very least, performing random luggage checks.
Transgender Travelers
TSA regulations state:
• Transgender passengers must have verifiable, legal identification in the same name, gender, date of birth as the information on their reservations.
• If they are carrying or wearing prosthetics they should notify the screeners and they may be revealed during a pat down or when going through the various types of screening devices. You may ask to have the inspection of your carry-on baggage done in private.
• In the event that you need a private screening or pat-down, you may request a witness of your choosing and you may ask to speak with a supervisor.
• If a pat-down is necessary the person doing it should be of the same gender presented by the passenger.
• You should never be asked to remove an article of clothing to reveal a prosthetic, nor to remove the prosthetic at any time.
Traveling by Car
• If stopped you must provide a valid driver’s license, insurance card and registration.
• You do not have to answer questions.
• Keep interior lights on in the car at night and your hands on the steering wheel.
• Do not exit your car unless asked to do so.
• If the officer has “probable cause” your vehicle can be searched. If you are the driver and/or owner of the car clearly state you do not consent to a search.
• Do not attempt to interfere with their search even if you feel it is illegal.
• Officers will not tell you the reason for the stop until they have your documents in hand.
• If the officer is in an unmarked car and you cannot identify the driver as a uniformed officer, you may slow down, put on your hazard lights and move to a well-lit public area to stop.
• If the officer(s) stopping you is not in uniform you may ask for photo identification in addition to a badge or shield.
• Never reach for anything unless you inform the officer where you are reaching and why and wait for the officer to approve.
• If they wish to search secured areas (e.g., trunk) if you open it for them it is considered tacit consent for the search. You can tell them where the keys are and allow them to do it themselves.
• If you’re required to sign a ticket, do so. It is not an admission of guilt, just an acknowledgment that you must appear.
• Remain calm.
Walking on the Street
Perhaps you’re on your way to the club and you’re carrying a plethora of weapons of “ass” destruction on your person. What do you do when confronted by the police?
• Do NOT reach into your pockets or bag.
• You can ask why you’re being stopped.
• You have the right not to incriminate yourself
• Answer in a respectful manner. Do not lie or give evasive or smart ass answers.
• If an officer believes you may be carrying a weapon you may be subjected to a “frisk” which is different than a “search”. A frisk is a pat-down for obvious weapons. Only if something is found that feels like a weapon can the officer go into that area. Going through your pockets is a search and requires “probable cause” as opposed to “reasonable suspicion.”
• You do not have to submit to a search unless you are under arrest. State “I do not consent to a search” clearly and do not interfere if the officer persists. The 4th Amendment guarantees protection from unreasonable searches.
• You do not have to answer questions about where you were born, or your immigration status unless you are at a border crossing or international airport.
Play Parties and Events
For large events, the prudent thing is to get with the local police before the event. If they have been kept out of the loop when planning this event then they are more apt to act decisively once a complaint has been received. In addition, they will be more likely to respond to an exaggerated or erroneous point of view.
• Speak with the community affairs officer and/or precinct commander
• Make sure you have the necessary permits
• Be aware of local laws and ordinances regarding alcohol, nudity, health codes
• With large events have someone to show them around and assigned to accompany them
• With play parties, be aware of neighborhood ordinances, fire codes, health codes, occupancy limits
• Use the same considerations as an organization or organizer as you would as an individual, with the caveat that you are now responsible for more than just yourself.
• Make sure your play space is not open to view from anyone coming to the door
If the police appear at your door and request to enter, you do have rights and remedies. Knowing these rights and remedies is integral to acting appropriately in the face of police inquiry.
Public Play Spaces
Police can come to your public play space (“PPS”) under two basic regimes. The first is a warrant. Pursuant to the 4th Amendment of the U.S. Constitution, and most equivalent state constitutions of which I am aware, warrants must be issued “on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” To get such a warrant, a police officer must sign a sworn statement detailing his prior investigation and the basis of his probable cause. The warrant must be approved and executed by a judge.
When police officers come to your PPS with a warrant, you must let them enter. Note that the police can only seize that which is specified in the warrant. They cannot just go taking things generally. The obvious exception is the doctrine of plain view which states that if during a lawful search, the police discover an illegal instrumentality that is sitting in plain view, they can properly seize same. Papers, such as membership rosters, liability waivers, promotional materials, can never be considered to be in “plain view” as one has to look at them to understand their legality. See People v. Roth, 66 N.Y.2d 688, 690, 487 N.E.2d 270, 271 (1985)
Items that are not properly seized, even pursuant to warrant, can be suppressed in a subsequent criminal proceeding. Further, you will have a lawsuit against the police for illegal search and seizure. More on those later.
If the police do not have a warrant, even if the PPS is public, they can enter to search only in one of two situations. The first is where they request permission to search, which must be clearly expressed. See People v. Lazarus, 159 A.D.2d 1027, 552 N.Y.S.2d 722 (4th Dep’t 1990) (permission to enter or to look does not equal consent to search.) It also must be requested of someone with appropriate authority. See People v. Goldstein, 116 A.D.2d 658, 497 N.Y.S.2d 727 (2d Dep’t 1986).
Otherwise, they can only rely on one of the other warrantless search exceptions. For example, the police can enter if they believe there is an actual emergency/threat to public safety. Such a warrantless search may be justified if two criteria are met: the police must have reasonable grounds to believe an emergency exists; and there is some basis, approximating reasonable cause, to associate the emergency with the area to be searched. See People v. Krom, 61 N.Y.2d 187, 473 N.Y.S.2d 139, 461 N.E.2d 276 (1984). These exceptions are very narrowly construed.
If the police knock on the door of a PPS and demand entry, you have the right to question their reasoning and determine (a) whether they have a warrant, and (b) if they do not, what their basis for wanting to enter is. If they cannot tell you that they believe there are exigent circumstances meriting an entry, you can refuse to allow them to enter.
That you may be conducting commercial activity in your PPS does not diminish your right to privacy within. See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943, 543 (The businessman like the occupant of a residence has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property).
If you believe your premises have been illegally searched and/or items have been illegally taken, you have remedies. If you are being charged criminally, you can get what’s known as a Mapp hearing. At a Mapp hearing, the Court will assess the police action. The government has the initial burden of going forward to establish the legality of the police conduct. The defense has the burden of proving the illegality of the search and seizure. See Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). If you can establish illegal search and seizure, you can get suppression of the evidence in any subsequent criminal prosecution. Not only is the evidence illegally taken suppressed, but any evidence developed from that illegally obtained evidence will be suppressed.
To use an example, let’s say the police enter your PPS and improperly take a list of guests. Then they go and obtain a warrant to search each of the homes of said guests. Not only will the guest list be suppressed in a subsequent criminal prosecution, but any evidence taken from the homes of the guests which only would not have been located but for the illegally obtained guest list.
Note: Winning a suppression hearing is not a foregone conclusion. It is very difficult, but it can be done with competent lawyering.
If your premises are illegally searched, you also have civil remedies. You can bring a claim for civil rights violations pursuant to 42 U.S.C. 1983 and your equivalent state constitution (provided that your state court has given a private right of action under same, not every state does). In such a claim, you will have the right to prove that the police violated your civil rights (freedom from improper search and seizure pursuant to the 4th amendment) under color of state law. Such a case entitles you to civil damages as well as your attorney’s fees (42 U.S.C. 1988). Further, many lawyers take such cases on contingency.
So, in conclusion, these 7 Key Points are essential for our dealings with law enforcement:
• Be polite, calm and professional.
• Do not consent to warrantless searches and state so calmly and clearly.
• Do not make incriminating statements verbally or in writing.
• Do not try to resist police even if you feel they may be wrong.
• Seek legal counsel and representation as soon as possible.
• Take as much information as possible as discreetly as possible if confronted.
• Try to avoid interactions with police as much as possible.
Finally, in the case of medical emergencies, rules are a little different. You should give the emergency medical responders all pertinent information in order for them to give appropriate care. HIPAA law requires that they keep patient information confidential so they are not to tell police officers what you tell them, and if they do, it is considered hearsay, and they face censure. Make sure you speak with them away from police officers.
published by permission, @copyright SirGuy deBrownsville, member, Board of Directors of BED